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December 11, 2007

USSC unanimously votes to make new crack guidelines retroactive...

Though I am relying here on second-hand reports, I have now on pretty good authority from two sources that the US Sentencing Commission today voted to make its new crack guidelines retroactive.  Here's what I received from one of these reputable sources:

The vote is yes — they have made the amendment retroactive effective March 3, 2008.

They also promulgated an application note intended to restrict resentencings exclusively to the issue of the two-level reduction. It makes public safety a central concern for courts to evaluate when reconsider these sentences.

Assuming this report is accurate, this strikes me as another example of the Commission's commitment to justice being effectively implemented with political savvy.  It also makes me wonder whether Senator Hillary Clinton or anyone else who has come out against retroactivity might try to get Congress to overturn this decision before it will become effective in three months.

UPDATE:  FAMM has this press release discussing the decision on its website.

December 11, 2007 at 04:02 PM | Permalink


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Tracked on Dec 11, 2007 4:58:18 PM

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The U.S. Sentencing Commission voted unanimously today to make retroactive its new crack guidelines, which reduced penalties for crack cocaine offenses. Ultimately, a federal sentencing judge would determine whether an offender is eligible for a lower ... [Read More]

Tracked on Dec 11, 2007 5:11:51 PM


But, what is the procedure by which a defendant gets back in front of the district court? Its not 2255, which only applies to things made retroactive by the Supremes. Right?

Posted by: NYCLawguy | Dec 11, 2007 4:44:07 PM

It was 7-0. All 7 Commissioners spoke eloquently about balancing fundamental fairness with the real concerns of the public. Also, most of the Commissioners made sure to mention that this is a first step and that Congress must act next to fix the problem of the 100 to 1 ratio.

Posted by: Harvey Harris | Dec 11, 2007 4:54:46 PM

I believe it is 2255. You don't get a Booker review and the defendant doesn't appear. It's done with a simple order. Reading the reports on the vote, it seems judges only have to "consider" application of the reduction... i.e. judges can refuse.

Posted by: dweedle | Dec 11, 2007 4:59:36 PM

It is not 2255. It is, fortunately, 18 USC 3582(c)(2). If it were 2255, a lot of defendants, those who had already filed 2255 petitions and would have to ask circuits courts for permission to file a second one, would miss out.

Posted by: Fedef | Dec 11, 2007 5:17:18 PM

And, despite peoples' rhetoric, it is unclear if 18 USC 3582(c)(2) requires a sentence to be Bookerized.

Posted by: S.cotus | Dec 11, 2007 10:12:29 PM

It's so nice to see a decision made despite vehement "it will open the floodgates of litigation" polemics. The "floodgates" argument wins 99% of the time so long as it's plausible. Appealing to the laziness of overworked and understaffed judges is the best argument that can be made in modern American jurisprudence.

Posted by: bruce | Dec 12, 2007 11:29:56 AM

Of course, in reality, most judges are neither overworked nor understaffed and the federal judiciary is quite capable of dealing with workload problems.

Posted by: S.cotus | Dec 12, 2007 4:04:16 PM

S.cotus: I agree completely, but the "floodgates of litigation" argument is historically incredibly successful. At oral argument it's usually brought up by one of the judges in a quivering voice before the lawyers even gets to threaten it. It applies to civil cases too, of course. "If my opponent gets his way, it will open the floodgates of litigation, and our courts are already overworked and understaffed." Bam, victory.

Posted by: bruce | Dec 12, 2007 11:48:49 PM

I am a sister of one whos in prison for crake cocain.
I would just like to know how they go about applying for this and about how much time he could get off his sentance. he got 15 years for conspericy and he was the only one in the bust that got this long

Posted by: Crystal | Dec 27, 2007 11:24:54 AM

I am also happy this law has passed. I am a 28 year old single mother who had a baby girl 06/08/06 and the feds locked my babydaddy up on 06/14/06. They had gave him a date of 2023 for release and he never been locked up before. I will not go into detail's but i will say its about time the system did something Right! Lets just hope this REALLY works!

Posted by: V | Jan 12, 2008 12:52:25 PM

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